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November 01, 2017 Waymaker

An Interview with Justice Dana Fabe

By Marla N. Greenstein

Justice Dana Fabe served three terms as chief justice of the Alaska Supreme Court and is the second justice in the court’s history to serve three terms. She was appointed to the Alaska Supreme Court in 1996 and is the first woman to serve on the court and as chief justice. She retired from the court system June 1, 2016. Prior to serving on the Alaska Supreme Court, Fabe served as chief public defender for Alaska from 1981–88, when she was appointed to the superior court bench in Anchorage. She served as deputy presiding judge and training judge while on the superior court bench. An innovative leader, Fabe co-chaired the Alaska Fairness and Access Commission and chaired its Fairness, Diversity, and Equality Committee. She also served as co-chair of the Advisory Committee of the Center for Judicial Ethics at the National Center for State Courts. Justice Fabe has served on the board of directors and twice as second vice president of the Conference of Chief Justices and is a past president of the National Association of Women Judges.

Most recently, Justice Fabe is the recipient of the National Center for State Courts 2017 Sandra Day O’Connor Civic Outreach Award. Her previous honors include the 2012 Distinguished Service Award from the National Center for State Courts and the 2012 Justice Vaino Spencer Leadership Award from the National Association of Women Judges, and she was named a Woman of Achievement by the YWCA in 2002. She is a Life Fellow of the American Bar Foundation and a sustaining elected member of the American Law Institute. Fabe received her B.A. from Cornell University and her J.D. from Northeastern University School of Law. Married to Randall Simpson, they have a daughter, son-in-law, and a new grandson. Justice Fabe has served as a mentor and inspiration for countless young lawyers in Alaska.

When were you first attracted to a career in the law?

I was studying music and art history in college, but I took a government class in my junior year that was taught by a professor in the law school. It was a constitutional law class where we studied the big constitutional law cases. And I was totally hooked. I loved that class and started talking with the professor about law school.

We didn’t have lawyers in my family. My father was a builder and developer (although he started law school at the University of Cincinnati as a second career at the age of 57, after I was already practicing law in Alaska!). So, law as a career had never really crossed my mind until I took that government class. One of the assignments was to trace back to its roots an important constitutional law case argued before the U.S. Supreme Court to learn about the human side of the case . . . how the case began and made its way through the courts. I picked Brandenburg v. Ohio because it arose very close to my home in Cincinnati. Allen Brown, who was a famous constitutional lawyer from Cincinnati, had taken the case on along with Eleanor Holmes Norton. I was able to interview Allen Brown about the case for my paper, and I was fascinated by the project. It was at that point that I first thought about law school.

I chose to attend Northeastern Law School because of its co-op program, in which I could work in a law office every other quarter during my second two years. A lot of students just stayed in Boston for their co-op experiences, and I did work one summer in Boston, but I also went to Bozeman, Montana, to work for an environmental lawyer and to Louisville, Kentucky, to work for a criminal defense attorney. And then, for my last co-op, which was the winter of 1975–76, I applied to Wendell Kay in Alaska, as well as to a small law firm that did criminal defense and constitutional law in Honolulu. I was offered both jobs and because the winter co-op took place in December, January, and February, I chose the Honolulu firm.

What brought you to Alaska?

At the end of October 1975, Justice Edmond Burke came to interview for law clerks for the Alaska Supreme Court because then, as now, there was no law school in Alaska and the justices undertook interview trips on the East Coast and the West Coast. In the interview, Justice Burke asked me, “why Alaska?” And I explained how I had almost chosen to come to Alaska that coming winter to work for Wendell Kay in Anchorage. Justice Burke then talked about being a trial judge in Kodiak, where he had begun his judicial career, and we just had a wonderful conversation. So, I accepted his invitation to clerk and thought it would be sort of a “super co-op” for a year.

My parents were totally supportive, especially my dad. I drove myself up, including the last 900 miles of the unpaved Al-Can Highway, after taking the state ferry to Haines in a car with very low clearance. And my dad said, “you really need to know how to change a tire if you are going to drive yourself up the Al-Can.” So first he tried to teach me how to put together the jack. But I am not very mechanical, to put it mildly, and after 45 minutes of that unsuccessful lesson, my dad went into the house, came back outside and found a long stick, and tied a white handkerchief to the end of it. His instruction was that if I got a flat tire, I should just hold it out the window and wave it so I wouldn’t be eaten by the mosquitoes. And sure enough, I had a sidewall blowout on the Al-Can, but I did get out of the car, waived my white flag, and a nice trucker stopped and helped me change the tire.

Alaska was just a good fit for me. Here, people are so friendly and welcoming, and I had a really close, supportive group of friends from the beginning.

When I first met you, you were “the” public defender. How did that come about?

It was pretty fast. I was hired for appeals because I had done that work for the supreme court. But I really wanted to do trial work. So, after about a year in appeals, I went on to do trials—misdemeanor trials first and then felony trials—and then I was asked to be head of the appellate division. Within four years of my working there, Brian Shortell, the chief Alaska public defender, was appointed as a superior court judge. And he took me to lunch and said, “I’d like to appoint you acting public defender if you’d like to apply for my job.” In those days, there was a lot of turnover among assistant public defenders, and I actually was one of the senior attorneys in just four years. I didn’t think I was ready, but Brian thought that I was the right person to succeed him.

The application and appointment process for the state’s chief public defender is identical to our judicial selection process, with merit screening by the Alaska Judicial Council and appointment by the governor. I was 29 years old when I interviewed for the public defender position before the Judicial Council. Chief Justice Jay Rabinowitz chaired it at the time. I remember one of the Council members asking whether I wasn’t a bit young for so much responsibility. And I earnestly replied, “Well, I’m about to turn 30 in two months.” Chief Justice Rabinowitz then remarked, “Does that mean we won’t be able to trust you anymore?” Everyone laughed, and the Council nominated me along with three others to the governor. Governor Jay Hammond then appointed me to the position.

Looking back at the trajectory of your judicial career, did it feel like a natural progression?

It’s interesting. I’ve given a lot of advice to young people over the years. I tell them that in my career path, I have always picked something that I loved to do, and I didn’t worry too much about where it was going. It never occurred to me to think about becoming a judge. I did not start my career that way. I didn’t think about it while I was at the public defender agency. It wasn’t until Judge Seaborn Buckalew, one of our constitutional framers, retired from the bench and my mentor, Brian Shortell, said to me, “I think you would really love this job,” that I thought about applying. I had gotten away from the trial courtroom over my seven and a half years as public defender, and I really missed it. But that hadn’t really been in my mind until Brian Shortell approached me.

I think if you do what you love, then you work hard, and it doesn’t even feel like work. And that is how you excel and that is how people recognize that you can do other things. It was the same with the Alaska Supreme Court. I never thought I would be on the supreme court. I had been on the trial bench for over seven years, and I loved my work. But when the position came open, there had never been a woman on the supreme court, and I also loved appellate work and was up for a different challenge. But I hadn’t been aiming toward it.

You recently received the Sandra Day O’Connor Award from the National Center for State Courts. What does this particular award recognize?

It was a total surprise, and I am thrilled. The award recognizes a person or an institution or a group of people who have done extraordinary work in outreach to the community. Since Sandra Day O’Connor’s retirement from the Court, that has been her main focus. She developed iCivics as a civic education program for middle school students. I have always had a wonderful relationship with Justice O’Connor, and so that makes it a particular honor.

I have to say I’m humbled by it because the real people who deserve recognition are the administrative staff of the court. I think it is true as chief justice of the court, I’ve been able to implement ideas that I’ve had and to steer projects toward the outreach that I believe is important for the court and the community. But I have to say that all of the administrative directors for the Alaska courts with whom I’ve worked have been willing to devote resources and court staff to implement the ideas so that they’ve really flourished in Alaska. The court’s administrative staff members are the chief reason that these programs have been so great.

Some of our outreach ideas have come from the National Association of Women Judges. Color of Justice, for example, which is a program that works with teens, focuses on recruiting a diverse group of teens, young women, and teens of color to get them used to the idea of a legal career. This was a program developed in Missouri by Judge Brenda Stith Loftin. And in Alaska we’ve taken it to incredible heights because of our administrative staff and the partnerships they have forged. For example, we have partnered with faculty from the Washington State law schools, along with Mount Edgecumbe, a Sitka boarding school with a very high percentage of Alaska Native students from over 100 villages and communities, and the Alaska Native regional corporations that have helped us to bring students into Anchorage from rural Alaska. And the Outreach Committee that I formed my first term as chief justice and the Teaching Justice Network, working with educators and training teachers how to teach legal issues, were all implemented by extraordinary talented court administrative staff.

So I acknowledge that having a chief justice call people to the table to participate in an outreach program makes a difference. I did the Meet Your Judges program my first term as chief justice where I went to every superior court location and brought community members in to meet the judges in an off-the-record Q and A forum. And in my second term I did an Open Court set of forums where I went to each of the superior court locations and invited justice system participants and stakeholders to the table to work on a problem that had been facing that community. So, for example, in Nome we worked on minors-consuming-alcohol issues. In Kenai, we worked on collegiality between the prosecution and defense bars. In Anchorage, we worked on discovery problems that the criminal bar was having and on how to revamp the calendaring in child protection cases to move them more swiftly. Mental health issues related to misdemeanants was the topic in Juneau. And in each of these forums, we would brainstorm and come up with some concrete solutions that could be implemented. So, for example, in Juneau we came up with the need for a Mental Health Court and we obtained seed money from the Mental Health Trust to start such a program. But in all of those forums, although I could invite people to the table and facilitate the discussions—and because I was chief justice, people would come in for the day to participate in these workshops—the people who truly made these forums a success and began the process of implementing the solutions were the court’s administrative staff.

What was the role of the National Association of Women Judges (NAWJ) in this aspect of your judicial career?

I joined NAWJ after I was appointed, but before I was even sworn in to sit on the bench, in October 1988. NAWJ always had its eye on the big-picture issues coming down the pike, particularly issues involving women and children and underserved populations, including immigrants and women in prison. In 2005, Vanessa Ruiz, the president of NAWJ, asked me to serve as the project chair for the Association. When I asked whether there were any projects that she would like me to develop, she responded, “Yes, we need a signature program for the Women in Prison Committee.” So I thought the best way to figure out what the national program should look like was to try one in Alaska. That was the beginning of “Success Inside and Out.”

My concept was that as judges, we see many of the same people cycling in and out of our courtrooms, and we could serve an important role in facilitating reentry. After seeing the same people running through the system, it was my sense that many offenders who didn’t succeed really didn’t have the tools to survive once they were out of the institution. My idea was a reentry conference for women within one year of their release from prison. So, we went out to the state’s women’s prison, Hiland Mountain, to talk to the superintendent and those running the institution, as well as the women themselves, to assess what their needs were. We surveyed the women, asking, “if you could have five questions answered about what to do when you are released, what would they be?” That helped us narrow what the focus would be. Many of the women in the institution had the same questions: How do I get a job? How do I stay healthy and avoid an unhealthy relationship? How do I stay out of trouble with my probation officer? And those answers really helped us develop the conference.

My vision was, because I love the NAWJ annual conferences, to mirror an NAWJ conference. We incorporated inspiring plenary session speakers and smaller concurrent sessions on nuts-and-bolts issues. When the women checked in in the morning, they received a beautiful conference bag with some goodies in it, just as occurs with an NAWJ conference. We asked a talented Alaska artist to work with the women to design a conference logo, and all of the women in the institution voted for the winning logo—a woman releasing butterflies from her fingertips—which became the logo for the conference bag every year.

We placed a primary focus on how to apply and interview for a job, how to hold on to a job, and also how the women’s next steps didn’t need to reflect the steps that led them into the institution. So, it was NAWJ that inspired me to do this. But again, the reason the program was so successful was the administrative staff who put all the work into it and coordinated over 100 community volunteers each year. There was no way that I would have been able to do that with my caseload—I always kept a full caseload without any caseload reduction when I served as chief justice because there were only five of us on the court. So, the true credit goes to the court’s administrative staff and the many community volunteers.

We also developed Mentor Jet, a speed-dating-like mentoring program for students, in Alaska, and it has been adopted by NAWJ as one of its signature national programs.

What progress have you seen?

I chaired the first Access to Civil Justice Committee in the late ’90s, and it is heartening to see the development and expansion of the pro bono programs that work so successfully in partnership with Legal Services and the Alaska Bar and especially the creation of the self-represented litigant services within the court. Most recently, the court has developed an Early Resolution Program for self-represented litigants in contested court cases, which incorporates volunteer mediators, and I have enjoyed presiding in some of those hearings, as well as encouraging attorneys to volunteer as mediators.

Diversity in the court is another issue that I have worked on throughout my career. This includes working to develop a diverse bar because you can’t have a diverse judiciary without having a diverse bar. I think we are quite fortunate to work with the Washington State law schools, which have local law school programs here in Alaska, because this will encourage more Alaska Native students from rural Alaska to attend law school without the need to leave the state for three years. There is still work to be done. I still think we need to help young Alaska Native attorneys to get more trial experience so that they can honk about Carr peers on the trial bench. Many of them go to work for their Native Corporations, where they do primarily transactional work, and I think there is still a great opportunity to work with the public agencies, the District Attorney, Office of Public Advocacy, and Public Defender Agency, to develop a fellowship program where the Native Corporation pays for a talented young lawyer to work with one of those agencies for a year. This could provide more resources to the state agencies and more trial experience for the young attorneys, so it’s a win-win. I have met with in-house counsel for the Native Corporations and there seems to be an interest. I would really love to get that started.

Another thing I have loved in my time on the court is working with the law clerks, and diversifying our law clerk pool is another path toward diversifying the bench. I enjoy serving as a job counselor for law clerks, and I developed a public sector job forum for them. I would invite the heads of the public sector agencies and offices, including the U.S. Attorney, the Federal Defender, Alaska Legal Services, the PD, the DA, and the AG, as well as all of the state court law clerks, and we would talk about the application process and the entry-level job opportunities and the benefits of working in the public sector. I did this for 13 or 14 years. And, of course, if law clerks work in the public sector, they generally will get trial experience more quickly, which is a prerequisite for the role as trial judge.

So, it seems to me that our next step is to help young Alaska Native attorneys to consider a path to a judgeship. There are some building blocks you need if you are interested in a judgeship. As judges, we also need to reach out to them to tell them why this is a great job and why they might want to become a judge. When they return to the state to serve their own communities through their Native Corporations, that is fantastic, but there is another kind of service they could do for their community and for the greater community and that is to serve as a judge because when an Alaska Native comes into the courtroom as a litigant, a victim, a defendant, or a juror and looks up at the bench with no Alaska Native state court judge, what message does that send? What kind of confidence will they have in the fairness of the system and what kind of confidence can they have that the bench is serving them?

Looking back over your career, is there one program or achievement that stands out for you?

I’ve just loved every piece of it. It has been the most challenging and rewarding career. And choosing Northeastern as my law school because of the co-op program is what led me here. The luckiest day of my life was the day that Justice Ed Burke came to Northeastern to interview for law clerks. In large part because of Alaska’s judicial selection process and the excellence of our Administrative Office of the Court—there is no more wonderful court system to be a part of. Sandra Day O’Connor once said that the state courts should be the laboratories where many of the justice system’s innovations could percolate and take shape. In Alaska, we as judges have the freedom and support to be creative. And then when you create something good, the rest of the country may be watching.

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